EXHIBIT 4.57
SETTLEMENT AGREEMENT WITH MUTUAL RELEASE
This Settlement Agreement and Mutual Release (the "Agreement") is entered
into this 1st day of September, 2004 (the "Effective Date"), by and between
SurfNet Media Group, Inc. and SurfNet New Media, Inc. (collectively "SurfNet");
and The Xxxxxxxx Group, P.C. and Xxxxxx X. Xxxxxxxx (collectively "Xxxxxxxx").
All of the persons named above shall sometimes be referred to collectively as
the "Parties." This Settlement Agreement is entered into with reference to the
recitals set forth in the Article titled "Recitals" below and constitutes (i) a
settlement agreement between the Parties and (ii) a mutual release of all
liabilities of all Parties arising out of the matters described below.
RECITALS
1.1 In April of 2004, Xxxxxxxx filed a Complaint against SurfNet in
Maricopa County Superior Court entitled XXXXXX XXXXXXXX, ET AL. V. SURFNET MEDIA
GROUP, INC., ET AL., CV2004-007681. SurfNet thereafter asserted a Counterclaim
against Xxxxxxxx [collectively "the Litigation"].
1.2 Plaintiffs and Defendants each deny the allegations raised in the
Litigation, and they separately deny that each was damaged in any manner.
1.3 This Agreement is made as a compromise and settlement by and between
SurfNet and Xxxxxxxx and is intended to be a complete and final settlement of
all claims, disputes, and causes of action which were or could have been
asserted in the Lawsuit, and any and all claims, disputes or causes of action
related in any way to the Lawsuit. The Agreement is made without acknowledgment
of any fault or wrongdoing by any party. In order to accomplish this complete
release of all Parties, the Parties hereto enter into this Agreement.
TERMS OF SETTLEMENT
2.1 In consideration of the mutual covenants and agreements contained
herein, the sufficiency of which is hereby acknowledged, the Parties make the
promise to abide by the following covenants to the fullest extent authorized by
law:
2.2 Upon execution of this Agreement, the Complaint and Counterclaim shall
be dismissed with prejudice and each party shall bear their own fees and costs.
Within seven business days of the effective date of this Agreement, the parties
shall cause their respective counsel to execute and file a joint stipulation for
dismissal with prejudice and submit a proposed form of order providing for
dismissal of the Lawsuit with prejudice.
2.3 The parties hereby confirm that on July 17, 2003 SurfNet's Board of
Directors authorized the issue of a minimum of 180,000 shares of SurfNet's stock
to Xxxxxx Xxxxxxxx or her designees for services rendered. Even though Xx.
Xxxxxxxx had beneficial ownership of the stock as of July 17, 2003, the Board
did not issue the stock at that time but held it in a fiduciary capacity for Xx.
Xxxxxxxx and her designees.
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
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2.4 In consideration of this settlement and based upon SurfNet's prior
agreement and Board of Directors meeting to issue shares of their common stock
as of July 17, 2003, upon execution of this Agreement, SurfNet shall issue the
180,000 shares of SurfNet's common stock that they have been holding in a
fiduciary capacity as follows:
a) 117,600 shares to "The Carmel Trust"
b) 62,400 shares to "Xxxxxxx X. Xxxxxx, A.P.C."
"The Carmel Trust" and "Xxxxxxx X. Xxxxxx, A.P.C." shall be allowed to
make a one-time transfer of up to one-half of these shares at anytime without
prior Board approval.
MUTUAL RELEASES
3.1 The Parties, and each of them, shall and do hereby forever mutually
relieve, release and discharge one another and their respective successors,
attorneys, and employees, and each of them, from any and all claims as
hereinafter defined.
For purposes of this release, "claims" shall mean any and all claims,
defenses, debts, agreements, liabilities, demands, contracts, obligations,
promises, acts, costs and expenses (including but not limited to, attorneys'
fees), damages, actions and causes of action of every kind and nature whatever,
whether now known or unknown, suspected or unsuspected, including, but not
limited to, tort claims, fraud claims, and actions for malicious prosecution or
abuse of process, occurring or existing at any time heretofore, to and including
the date hereof or arising at any time hereafter, based upon, arising from,
relating to, or in any manner connected with, directly or indirectly, the
matters, facts or claims set forth in the Litigation, and the Article of this
Agreement titled "Recitals."
Unless the context otherwise indicates, whenever used in this Agreement
the word "liability" shall include, but is not limited to, any and all claims,
demands, damages debts, accounts, obligations, costs, expenses, liens, or other
liabilities.
The Parties each covenant and agree that neither they, nor anyone claiming
through them, will ever institute or maintain against any Party they have
released in this Agreement (or their agents, successors or assigns) any claim,
demand, action, lien, cause of action or suits at law or in equity, directly or
indirectly, for or because of any of the matters released hereby. The Parties
further covenant and agree that this release is a bar to any such claim, action,
suit or proceeding.
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3.2 REPRESENTATIONS AND WARRANTIES. The Parties, and each of them, hereby
represent and warrant to, and agree with each other as follows:
(a) The Parties, and each of them, have each received independent
legal advice from attorneys of their choice, or have had the opportunity to
consult an attorney but have declined to do so, with respect to the advisability
of making the settlement and release provided herein, and with respect to the
advisability of executing this Settlement Agreement, and prior to the execution
of this Settlement Agreement by each Party, that Party had the opportunity for
its attorney to review this Settlement Agreement at length and make all desired
changes;
(b) Except as expressly stated in this Settlement Agreement, neither
Plaintiff nor Defendants have made any statement or representation to any other
party regarding any fact relied upon by any other party in entering into this
Settlement Agreement, and each Party specifically does not rely on any
statement, representation, or promise of any other party in executing this
Settlement Agreement, or in making the settlement provided for herein, except as
expressly stated in this Agreement;
(c) Each Party, and its attorneys, if desired, has made such
investigation of the facts pertaining to this Settlement Agreement and all of
the matters pertaining thereto, as they deem necessary;
(d) The terms of this Settlement Agreement are contractual, not a
mere recital, and are the result of negotiation between the Parties;
(e) The Recitals to this Settlement Agreement are expressly made a
part hereof;
(f) This Settlement Agreement has been carefully read by the Parties
hereto, and if they choose, by their attorneys; it is signed freely by each
person executing this Settlement Agreement; and each person executing this
Settlement Agreement is empowered to do so;
(g) In entering into this Settlement Agreement, the Parties, and
each of them, recognize that no facts or representations are ever absolutely
certain. The Parties acknowledge that they are aware that they may, after
execution of this Agreement, discover facts different from or in addition to
those they now know or believe to be true with respect to the liabilities,
actions or causes of action to be released. Accordingly, each Party assumes the
risk of any incomplete disclosure or mistake. If any Party should subsequently
discover that any fact it relied upon in entering into this Settlement Agreement
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was untrue, or that any understanding of the facts or of the law was incorrect,
such Party shall not be entitled to set aside this Settlement Agreement by
reason thereof. This Settlement Agreement is intended to be final and binding
between the Parties hereto, and is further intended to be effective as a final
accord and satisfaction between Plaintiff and Defendants, regardless of any
claims of misrepresentation, promise made without the intention of performing
it, concealment of act, mistake of fact or law, or any other circumstance
whatsoever. Each Party relies on the finality of this Settlement Agreement as a
material factor inducing that Party's execution of this Settlement Agreement.
(h) The consideration specified herein is given for the purposes of
(i) settling and compromising all claims and disputes which have arisen between
the Parties, and (ii) releasing Plaintiff and Defendants by operation of this
Settlement Agreement, from any and all claims and liabilities, past, present and
future, that have or may arise out of the matters described in the Article
titled "Recitals." Nothing herein shall be construed as an admission by any
Party, its agents, servants or employees of any liability of any kind to the
other.
(i) Each Party represents and warrants that he or she has not
heretofore transferred or assigned or purported to transfer or assign to any
person, firm or corporation any claim, demand, damage, debt, liability, account,
action or cause of action herein to be released. Each Party agrees to indemnify
and hold harmless the other Party he or she has released in this Settlement
Agreement against any claim, defense, demand, damage, debt, liability, account,
action, cause of action, cost or expense, including, but not limited to,
attorneys' fees actually paid or incurred, arising out of or in connection with
any such transfer or assignment or purported or claimed transfer or assignment.
(j) Each Party acknowledges the adequacy of the consideration given
for the release of all Parties in this Settlement Agreement, and understands
that irrespective of whether the consideration is expressly described herein
adequate consideration exists for the release of all Parties, and each of them,
under this Settlement Agreement.
GENERAL PROVISIONS
4.1 ENTIRE AGREEMENT. This Settlement Agreement contains the entire
agreement between the Parties relating to the settlement and release
contemplated hereby, and all prior or contemporaneous agreements, understands,
representations and statements, oral or written, are merged herein.
4.2 EXAMINATION OF AGREEMENT. Each Party has relied upon its own
examination of the entire Settlement Agreement, and the warranties,
representations, and covenants expressly contained in the Settlement Agreement
itself. The failure or refusal of either party to inspect the Settlement
Agreement or other documents, or to obtain legal advice relevant to this
Settlement Agreement, constitutes a waiver of any objection, contention, or
claim that might have been based upon such reading, inspection or advice.
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4.3 NO CONSTRUCTION AGAINST DRAFTER. Except as otherwise specifically set
forth herein, the Parties acknowledge that this Settlement Agreement, in its
final form, is the result of the combined efforts of the parties hereto and that
should any provision of this Settlement Agreement be found to be ambiguous in
any way, such ambiguity shall not be resolved by construing this Settlement
Agreement in favor of or against any party herein, but rather by construing the
terms of this Settlement Agreement fairly and reasonably in accordance with
their generally accepted meaning and the purposes for which this Settlement
Agreement is made.
4.4 NO MODIFICATION. No modification, waiver, amendment, discharge or
change of this Settlement Agreement shall be valid unless the same is in writing
and signed by the party against which the enforcement of such modification,
waiver, amendment, discharge or change is or may be sought.
4.5 SUCCESSORS BOUND. All terms of this Settlement Agreement shall be
binding upon and inure to the benefit of and be enforceable by the Parties
hereto and their respective legal representatives, successors and assigns.
4.6 SEVERABILITY OF TERMS. In the event any term, covenant, condition,
provision or agreement herein contained is held to be invalid or void by any
court of competent jurisdiction, the invalidity of any such term, covenant,
condition, provision or agreement shall in no way affect any other term,
covenant, condition, provision or agreement herein contained.
4.7 FURTHER COOPERATION. Each of the Parties shall fully cooperate with
the other in connection with the requirements imposed by this Settlement
Agreement and each agrees to take such further actions and to execute and
deliver such further documents, with acknowledgment or affidavit, if required,
as may be reasonably necessary to carry out the purposes of this Settlement
Agreement and to facilitate the satisfaction of any conditions set forth herein.
4.8 CHOICE OF LAW. This Settlement Agreement, and any dispute arising
hereunder, shall be construed and enforced in accordance with, and be governed
by, Arizona law.
4.9 ATTORNEYS' FEES. If either party brings an action to enforce the terms
of this Agreement or to declare rights hereunder, the prevailing party, as
determined by the court, in any such action, on trial or appeal, shall be
entitled to its reasonable attorneys' fees and costs to be paid by the losing
party, as determined by the court.
4.10 EXECUTION IN COUNTERPARTS. This Settlement Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. However,
this Agreement shall not be binding on any Party until all the Parties have
executed it.
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4.11 FACSIMILE SIGNATURES. This Settlement Agreement may be executed and a
copy of such executed Settlement Agreement transmitted by facsimile, which when
received can be used as an original of the Settlement Agreement for all
purposes.
PLAINTIFF:
XXXXXX XXXXXXXX and THE XXXXXXXX GROUP, P.C.
Dated: 9/1/04 By /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
Its President
---------------------------------
DEFENDANTS:
SURFNET MEDIA GROUP, INC. and SURFNET NEW MEDIA, INC.
Dated: 9/1/04 By /s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
Its Chairman
---------------------------------
APPROVED AS TO FORM:
Dated: 9/2/04 By /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
Attorney for Plaintiffs
Xxxxxx Xxxxxxxx and
The Xxxxxxxx Group, P.C.
Dated: By
----------------------------- ----------------------------------
Xxxxxx X. Xxxxxx
Attorney for Defendants
Surfnet Media Group, Inc.
and Surfnet New Media, Inc.
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